Nos. 17A911, 17-8151

IN THE

Supreme Court of the United States

RUSSELL BUCKLEW,

Petitioner,

v.

ANNE PRECYTHE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Eighth Circuit

Application for a Stay of Execution

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI AND

IN OPPOSITION TO APPLICATION

FOR STAY OF EXECUTION

JOSHUA D. HAWLEY

Attorney General

D. John Sauer

First Assistant and Solicitor

Joshua M. Divine

Michael Spillane

Counsel of Record

Office of the Attorney General

207 W. High Street

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

Mike.Spillane@ago.mo.gov

Counsel for Respondents

i

QUESTIONS PRESENTED

1. As the Eighth Circuit found, the district court granted Russell Bucklew

“extensive discovery.” Bucklew attempted to seek additional discovery about the

qualifications of medical personnel. Did the district court properly exercise its

considerable discretion when it refused to permit him to discover the qualifications

of medical personnel because Bucklew expressly pleaded that the qualifications had

no bearing on whether lethal injection would be unconstitutional?

2. No person submitted quantifiable evidence concerning the duration of

execution by lethal gas. The only possibly relevant testimony was one expert’s

vague, unquantified response that execution by lethal gas would occur “quickly.”

Did the Eighth Circuit correctly hold that Bucklew failed to provide sufficient

evidence for the Court to determine whether lethal gas would “significantly reduce a

substantial risk of severe pain” compared to lethal injection given this dearth of

evidence?

3. Glossip holds that “identify[ing] a known and available alternative method

of execution that entails a lesser risk of pain [is] a requirement of all Eighth

Amendment method-of-execution claims.” In 2015, the Eighth Circuit held that

Bucklew had to plead a readily available alternative method of execution when

raising an as-applied challenge to a method of execution. Bucklew chose not to file a

petition for certiorari even though this Court gave him a two-and-a-half-month

extension to file. Should this Court carve out an exception to Glossip for as-applied

challenges when Bucklew delayed bringing that claim for three years?

ii

STATEMENT OF EXHIBITS

Resp.Ex.1: part 1 of Dr. Zivot’s deposition and exhibits.

Resp.Ex.2: part 2 of Dr. Zivot’s deposition and exhibits.

Resp.Ex.3: part 3 of Dr. Zivot’s deposition and exhibits.

Resp.Ex.4: article relied on by Dr. Zivot.

Resp.Ex.5: Dr. Antognini’s deposition.

Resp.Ex.6: memorandum in support of summary judgment.

Resp.Ex.7: reply in support of summary judgment.

Resp.Ex.8: order granting summary judgment.

Resp.Ex.9: order denying Rule 59(e) motion.

Resp.Ex.10: panel decision in Bucklew v. Precythe, 17-3052.

Resp.Ex.11: 2008 submission by Bucklew to the Eighth Circuit for funding to

pursue an as-applied Eighth Amendment challenge

Resp.Ex.12: Bucklew’s Fourth Amended Complaint.

Resp.Ex.13: affidavit from Defendants stating that Defendants will not place

Bucklew fully supine.

Resp.Ex.14: Bucklew’s reply brief.

Resp.Ex.15: order granting Bucklew an extension of time to petition for cert.

Resp.Ex.16: article describing anesthesia EEG metrics.

Resp.Ex.17: 9-1 order denying stay application

Resp.Ex.18: Bucklew’s opening brief

Resp.Ex.19: deposition of Matthew Briesacher

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................ i

STATEMENT OF EXHIBITS .................................................................................... ii

INTRODUCTION ........................................................................................................ 1

STANDARD OF REVIEW .......................................................................................... 3

FACTUAL BACKGROUND ....................................................................................... 3

I. Bucklew’s Medical Condition ................................................................... 4

II. The Execution Protocol ............................................................................ 6

III. Procedural History ................................................................................... 8

IV. Bucklew’s Evolving Theories ................................................................. 12

V. Bucklew Fails to Present Quantifiable Evidence for Either

Glossip Element ..................................................................................... 13

VI. The District Court Decision ................................................................... 14

VII. The Panel Decision ................................................................................. 17

SUMMARY OF THE ARGUMENT ......................................................................... 18

REASONS FOR DENYING THE MOTION AND PETITION ............................ 22

I. Bucklew Could Have Brought This Claim Sooner. ............................... 22

II. Bucklew Has Not Established Likelihood of Success on the

Merits. ..................................................................................................... 24

A. Bucklew’s discovery argument is unpreserved and

meritless. ...................................................................................... 24

B. Bucklew will not lie fully supine, so a critical factual

predicate of his claim fails. .......................................................... 26

C. Bucklew failed to present evidence concerning how long

the “twilight stage” might last. ................................................... 28

iv

D. The Eighth Circuit correctly determined that the record

lacks quantifiable evidence to compare nitrogen-induced

hypoxia to lethal injection. .......................................................... 31

E. Bucklew’s claim rests on evidence provided by an expert

witness who lacks credibility. ..................................................... 34

F. Bucklew is likely to lose on procedural grounds. ....................... 36

III. Reviewing Any of the Questions Presented Would Be

Unwarranted. ......................................................................................... 37

CONCLUSION ........................................................................................................... 39

1

INTRODUCTION

Russell Bucklew has had more opportunity to avail himself of the courts than

most people ever receive. In 2008, after an expert witness evaluated his medical

condition, Bucklew declared in a petition to the Eighth Circuit that he believed all

forms of lethal injection were unconstitutional as applied to him. Since then, he has

unsuccessfully sought relief from his capital sentence in three separate lawsuits.

Yet he chose not to file this suit—his as-applied challenge—for six years and waited

until just 12 days before his initially scheduled execution to do so. Before this Court

decided Glossip v. Gross, it granted him a last-minute stay so he could appeal the

question whether he was required to plead an available, alternative method of

execution. He lost that appeal, declined to petition for certiorari, and expressly

refused multiple times to plead an alternative method of execution because, in his

words, he “disagree[d] with the Court’s ruling that [he] must propose an alternative

means of execution.” The courts nonetheless afforded him four opportunities to

amend his complaint.

Through this prolonged litigation, Bucklew has successfully delayed his

execution for a decade, but he is no closer to obtaining success than he was in 2008.

As Bucklew presented his claim to the Eighth Circuit, Bucklew must prove a long

line of factual predicates to have any hope of succeeding. He asserts that when he

lies fully supine, gravity causes his engorged uvula to block his airway, which

ordinarily is not problematic because he suggests he can swallow to move it. But he

insists that at some point during lethal injection, there will occur what he calls a

2

“twilight stage”: a time when the chemicals have rendered him immobile but have

not yet rendered him insensate to pain. He contends that he will be unable to

swallow and will therefore feel a choking sensation. He asserts that this time will

last so long that it constitutes substantial, unnecessary pain and that execution by

lethal gas would be substantially less painful. If he fails to prove any of these

assertions, he loses on the merits.

Bucklew cannot prove any of these critical predicates. Although he now

changes his factual theory and asserts that he need not lie fully supine to maintain

a claim, the claim that he would be forced to lie fully supine was central to his

argument before the Eighth Circuit. But as the affidavit Defendants attach

establishes, Defendants will not force Bucklew to lie fully supine during his

execution. Bucklew also has provided neither evidence for how long the “twilight

stage” might last, nor how long it would take for nitrogen-induced hypoxia to

operate.

Even if this Court determined that the Eighth Circuit erred and that

Bucklew submitted sufficient evidence for every factual predicate, he would still

ultimately lose on the merits. Even the dissenting opinion suggested that Bucklew

could not win on the merits because he presented his evidence through an expert

with obvious personal biases and a demonstrated lack of credibility. Bucklew also

faces substantial procedural hurdles on which no court has yet ruled.

None of Bucklew’s claims justifies a stay of execution or writ of certiorari.

Bucklew will lose this suit in the end, and any further delay will only impede the

3

victims’ and the State’s “significant interest in meting out a sentence of death in a

timely fashion.” Nelson v. Campbell, 541 U.S. 637, 644 (2004).

STANDARD OF REVIEW

“[A] stay of execution is an equitable remedy, and an inmate is not entitled to

a stay of execution as a matter of course.” Hill v. McDonough, 547 U.S. 573, 583–84

(2006). “[I]nmates seeking time to challenge the manner in which the State plans to

execute them must satisfy all of the requirements for a stay, including a showing of

a significant possibility of success on the merits.” Id. at 584 (emphasis added). This

Court will not grant a stay “unless the movant, by a clear showing, carries the

burden of persuasion.” Id. (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(per curiam)).

This Court has further cautioned that granting a stay impedes “the State’s

strong interest in enforcing its criminal judgments without undue interference from

the federal courts.” Id. That is because “both the State and crime victims have an

important interest in the timely enforcement of a sentence.” Id. There also is a

strong equitable presumption against granting a stay where a party delayed

litigation. Id. Bucklew cannot meet the demanding burden to obtain a stay.

FACTUAL BACKGROUND

By 1996, Russell Bucklew already had an extensive criminal history,

including violence against multiple women. Bucklew v. Luebbers, 436 F.3d 1010,

1014 (8th Cir. 2006). When his girlfriend, Stephanie Ray, ended their relationship,

Bucklew slashed her face with a knife, beat her, and threatened to kill her. Id. at

4

1013. Terrified, she took her children and fled. Id. During the next two weeks,

Bucklew stole a car, several firearms, two sets of handcuffs, and duct tape. Id. He

then covertly stalked Ray until discovering where she was staying. Id.

Bucklew burst into that home. With stolen firearms, he shot the homeowner,

Michael Sanders, twice, killing him. Id. When Sanders’ six-year-old son came out of

hiding, Bucklew fired at the boy. Id. Bucklew pistol-whipped Ray, handcuffed her,

dragged her to his car, and raped her. Id. at 1013-14. He then engaged in a high-

speed chase with police followed by a gunfight where he wounded an officer before

succumbing to capture. Bucklew escaped custody and stalked and attacked Ray’s

mother with a hammer before recapture. Id. at 1014. A jury convicted him of

numerous crimes and sentenced him to death. Id.

I. Bucklew’s Medical Condition

Bucklew has long experienced symptoms of hemangioma. Broadly speaking,

that disease is common. One variant, for example, occurs in 10 percent of the

population. A. Munden, et al., Prospective Study of Infantile Haemangiomas:

Incidence, Clinical Characteristics and Association with Placental Anomalies, 170(4)

Br. J. Dermatol. 907, 907-13 (2014), https://goo.gl/n2hh5R. The disease causes some

blood vessels to deform into benign growths, which usually resolve without

treatment. Id.

Bucklew has a less common variant called “cavernous hemangioma.” That

variant is characterized by cavities in the growths that can slowly fill with blood.

Resp.Ex.1 at 141–42. Some of Bucklew’s growths are in his mouth, extend to his

uvula, and partly obstruct his airway. They are also sensitive and bleed. They

5

frequently bleed at night, although he usually sleeps through it without incident.

Id. at 143. And they bleed when he experiences significant stress. Resp.Ex.12 at 52.

The growth in Bucklew’s mouth has improved in recent years. Between 2010 and

2016, it shrunk nearly ten percent. Resp.Ex.1 at 172.

Unrelated to his hemangioma, some of Bucklew’s “peripheral” veins in his

arms are suboptimal because they are smaller, which makes it more difficult (but

not impossible) to insert an IV. Resp.Ex.5 77:5-8 (stating that an IV could be placed

in Bucklew’s right hand). Critically, however, Bucklew never presented any

evidence that he has problems with other veins. Bucklew’s medical expert neglected

to examine the veins in Bucklew’s legs and never presented any evidence to suggest

that those veins are suboptimal. Resp.Ex.1 at 70. Nor did Bucklew present evidence

that he has any problems with his much larger “central” veins, which extend from

the shoulders (subclavian), to the upper thigh and groin (femoral), and throughout

the leg to the ankle (saphenous). Resp.Ex.5 96:1-10. Indeed, the district court found

that—with the sole exception of the veins in his arms—Bucklew “concedes that

there is no evidence in the Record establishing that Plaintiff has any problem with

his veins.” Resp.Ex.8 at 4. Missouri’s lethal injection protocol permits using

Bucklew’s leg veins and central veins. Pet.App.145a.

It is also undisputed that none of the problems Bucklew has with his arm

veins have prevented him from receiving an IV and anesthesia in the past. In recent

years, Bucklew has undergone general anesthesia through an IV at least eight

times. Resp.Ex.1 at 212. Bucklew asserts in his motion that he will be forced to

6

undergo a “cut-down” procedure to access his veins. Pet. 10–11. But he has

submitted no evidence to suggest he ever had to undergo that procedure before.

His own expert, moreover, testified that medical personnel—if they had to

access a central vein—would be able to do so with ease. Dr. Zivot stated that

accessing peripheral veins is easier and therefore preferred. But the success rate for

accessing central veins without a cut-down procedure is extraordinarily high. Even

when Dr. Zivot was an inexperienced anesthesiologist, he could successfully insert

an IV into a central vein 90 percent of the time on a single attempt. Resp.Ex.1 at 73.

He also stated that anesthesiologists can make at least ten attempts to access a

central vein, id. at 74, rendering the need for a cut-down statistically impossible. At

that rate, the probability of success after two attempts is 99 percent. And the

probability of failure after 10 attempts is 1 in 10,000,000,000. Dr. Zivot testified,

moreover, that his 90 percent success rate was lower than the rate of more

experienced anesthesiologists. Id. at 73. Dr. Zivot’s testimony comports with the

testimony of the State’s expert witness—Dr. Antognini—that cut-down procedures

are generally reserved for victims of physical trauma in emergency rooms.

Resp.Ex.5 at 93–94.

II. The Execution Protocol

The State protocol for lethal injection requires medical personnel to divide

five grams of pentobarbital into two syringes. Pet.App. 145–46. That dose is “ten

times the amount that would be needed” to render a person unconscious. Resp.Ex.5

at 244–45. The medical personnel then insert an IV into either a peripheral or

central vein. Pet.App. 145–46. Once the IV is set, personnel adjust the gurney on

7

which the inmate is seated “so that medical personnel can observe the prisoner’s

face.” Id. Medical personnel then inject the pentobarbital dose, which is more than

enough to successfully induce death. Id.

Although Missouri law permits use of lethal gas, the State has no protocol in

place for lethal gas because that method has not been used since 1965. The State’s

only gas chamber not only is inoperable; it sits in a museum. Resp.Ex.19 at 49–50.

Nothing in the record suggests it could readily become operational.

The State has also been unable to develop a protocol for administering

execution by nitrogen because of a lack of evidence and research concerning the

procedure. Unlike lethal injection, lethal gas places witnesses and medical

personnel at risk in the event of leaks. Id. at 58. And the research on nitrogen use is

incomplete because no state has ever executed anyone with nitrogen. Id. at 56. The

Department of Corrections recently looked into the feasibility of writing a protocol

for nitrogen gas, but “the research available was not sufficient.” Id.

Bucklew’s expert witness agreed with this uncertainty. He testified that

“there’s no way to tell if nitrogen gas would not be cruel.” Resp.Ex.1 at 39. In fact,

some studies of hypoxia induced by other gases suggest that hypoxia entails

significant suffering. According to some studies, a person executed by hypoxia

remains conscious “for several minutes”—all the while experiencing pain similar to

a heart attack, causing the offender to “begin to drool, urinate, defecate, or vomit.”

Gray v. Lucas, 463 U.S. 1237, 1241 (1983) (Marshall, J., dissenting from denial of

certiorari) (citing studies). Bucklew never presented evidence about whether

8

nitrogen would cause such pain. He mentions a study about pilots, Pet. 15, but

neglects to mention that the study included nested hearsay and that the district

court concluded that the study was not admissible. Resp.Ex.9 at4.

III. Procedural History

Although Bucklew did not file this lawsuit until May 2014, he informed the

Eighth Circuit in 2008 that he believed lethal injection was unconstitutional as

applied. He retained an expert to review his medical records. That expert opined

that his condition interfered with circulation and would prolong any lethal injection,

rendering the procedure painful because Bucklew was likely to bleed when

subjected to stress. Resp.Ex.11 at 29–30. So Bucklew asked the Eighth Circuit for

funds to hire another expert to support a clemency petition. The motion asserted,

“Missouri’s method of execution, as applied uniquely to Mr. Bucklew, may constitute

cruel and unusual punishment.” Id. at 8 (emphasis in original).

A plaintiff who challenges a method of execution must plead that a readily

available alternative method exists that carries substantially less risk of

unnecessary suffering. This requirement has been in place at least since 2008. Baze

v. Rees, 553 U.S. 35 (2008), reaffirmed by Glossip v. Gross, 135 S. Ct. 2726, 2731

(2015). But in the decade that passed since Bucklew indicated that lethal injection

is unconstitutional as applied, Bucklew took every opportunity to delay pleading an

alternative method.

First, after unsuccessfully moving to intervene in a suit challenging the

lethal injection protocol, Clemons v. Crawford, 585 F.3d 1119, 1129 (8th Cir. 2009),

Bucklew brought a federal preemption challenge in 2009, seeking relief from

9

execution. But he chose not to bring his as-applied claim, which sought the same

relief. Ringo v. Lombardi, 677 F.3d 793, 795–96 (8th Cir. 2012). That suit became

moot when Missouri switched chemicals. Id.

In 2012, Bucklew raised a facial challenge to the new injection protocol but

declined to raise his as-applied claim and declined to plead an alternative method of

execution. In re Lombardi, 741 F.3d 888, 891 (8th Cir. 2014). The Eighth Circuit

rejected Bucklew’s complaint because he did not plead an alternative method of

execution. Id. at 896.

On remand, the district court granted leave to amend. Bucklew declined a

third time to plead an alternative method of execution. Zink v. Lombardi, 12-04209-

CV-C-BP (W.D. Mo. May 2, 2014), Doc.439, at 7-10. The district court declined to

dismiss his suit with prejudice and again granted him leave to plead an alternative

method of execution. The district court ordered him to re-plead by May 9. Id. at 10.

Bucklew declined to do so—for the fourth time—because he “disagree[d] with

the Court’s ruling that Plaintiffs must propose an alternative means of execution.”

Zink, Doc.443, at 1. The district court dismissed the complaint. That suit involved

the same defendants as this suit, and the dismissal constituted a final judgment on

the merits. Id.

On May 9, the day he was supposed to amend his complaint in Zink, he filed

this lawsuit—six years after he said he had an as-applied challenge and just 12

days before his scheduled execution. The statute of limitations is five years. Mo.

Rev. Stat. § 516.120(4); Wilson v. Garcia, 471 U.S. 261, 266-68 (1985).

10

Bucklew, who was represented by the same counsel in both suits, did not

request permission from the district court to split his two theories (facial and as-

applied) into two different lawsuits. And he used this new lawsuit as an opportunity

to yet again decline to plead an alternative method of execution—his fifth refusal.

The district court dismissed the complaint for that reason. Bucklew v. Lombardi,

2014 WL 2736014, at *6-7 (W.D. Mo. May 19, 2014).

Bucklew’s decision to file his as-applied challenge at the eleventh hour

spurred a flurry of last-minute litigation. A divided panel of the Eighth Circuit

stayed his execution on the ground that the requirement in Baze to plead an

alternative method of execution did not encompass as-applied challenges, but the

Eighth Circuit immediately vacated the stay en banc. Bucklew v. Lombardi, 565

Fed. App’x 562, 571 (8th Cir. 2014), opinion vacated on reh’g en banc (May 20,

2014). On the day of Bucklew’s scheduled execution, this Court denied Bucklew’s

petition for certiorari but granted a stay “pending the disposition of petitioner’s

appeal.” Bucklew v. Lombardi, 134 S. Ct. 2333 (2014).

Bucklew lost that appeal and chose not to file a petition for certiorari on the

very issue he raises in this petition despite this Court granting him a two-and-a-

half-month extension. Resp.Ex.15. The Eighth Circuit reaffirmed that Baze requires

pleading an alternative method of execution in all circumstances. Bucklew v.

Lombardi, 783 F.3d 1120, 1128 (8th Cir. 2015) (en banc). Three months later, this

Court did the same when it held that “identify[ing] a known and available

alternative method of execution that entails a lesser risk of pain [is] a requirement

11

of all Eighth Amendment method-of-execution claims.” Glossip, 135 S. Ct. at 2731

(emphasis added).

The Eighth Circuit then granted Bucklew another chance to amend his

complaint. Although Bucklew’s argument about Baze was wrong, “it was not

patently obvious the plaintiff could not prevail,” so the Eighth Circuit held that the

district court erred in dismissing the complaint sua sponte. Bucklew, 783 F.3d at

1127. The Eighth Circuit also indicated that Bucklew’s suit is likely time-barred

because he admitted in 2008 that he had an as-applied claim, but the court declined

to rule on that issue because Bucklew was entitled to amend his complaint. Id. at

1128–29.

Given another opportunity to plead an alternative method of execution,

Bucklew remained steadfast in his refusal—his sixth. Bucklew asserted that he

only had to make “allegations concerning [his] medical condition” and that “[i]t is up

to the State” to identify alternative methods. Bucklew, Doc.30, at 35.

A month later, Bucklew filed his second amended complaint. He again

refused to properly plead. This time, he stated that he would not plead an

alternative method until the district court ordered substantial medical evaluations.

Bucklew, Doc.37, at 7. When Defendants moved to dismiss, Bucklew sought leave to

amend. The district court granted leave but required that he re-plead within three

days in the light of his delay. Bucklew, Doc.45, at 1-2.

Bucklew again failed to plead an alternative method of execution—for the

eighth time. The district court stated that “[t]here are certainly reasons not to

12

permit” amendment, notably Bucklew’s failure to “plead an alternative despite the

Court ordering him to do so.” Bucklew, Doc.52, at 10-11. The district court

nonetheless granted Bucklew “one last opportunity” but made it “extremely clear”

that it was the “last time Bucklew will be given the opportunity.” Id. at 1, 11.

Facing threatened dismissal with prejudice, Bucklew finally—on his ninth

attempt—alleged nitrogen-induced hypoxia as an alternative method of execution.

Resp.Ex.12. He filed that complaint, his fifth in this suit, on October 13, 2015—

seven years after he first announced that he believed all lethal injection protocols

were unconstitutional as applied.

IV. Bucklew’s Evolving Theories

Bucklew no longer argues the claim specified in his complaint. The operative

complaint stated that “any means of lethal injection,” no matter what chemical is

used, “will almost inevitably lead to a prolonged and tortuous execution.”

Resp.Ex.12 at 2. It further stated that he has difficulty breathing and that the

stress of any execution would exacerbate that problem. Id. ¶¶ 1, 103, 128, 146.

What made lethal injection worse than lethal gas, he asserted, was that “the lethal

drug will not circulate as intended, delaying suppression of the central nervous

system and prolonging the execution.” Id. ¶ 6. But Bucklew’s medical records

conclusively undermined this theory. Even Bucklew’s expert conceded that he “ha[d]

no evidence” to support that theory. Resp.Ex.1 at 66.

Bucklew then shifted theories and asserted that if he lies “completely prone,”

Resp.Ex.12 ¶ 128, his uvula will block his throat. But as the panel determined,

13

Bucklew laid fully supine for more than an hour while undergoing an MRI.

Resp.Ex.10 at 9.

When the MRI procedure proved he could lie flat, his claim evolved yet again.

Before the Eighth Circuit, he asserted that he can lie fully supine only if he can

swallow (to move his uvula). Resp.Ex.18 at 5. He claimed that at some point a

“twilight stage” will occur where pentobarbital will render him immobile before

suppressing pain sensation. He asserted that he will be unable to swallow during

this time and therefore will be able to feel his uvula blocking his throat. Resp.Ex.10

at 9. Bucklew never amended his complaint to assert the existence of a “twilight

stage.”

In his current petition, Bucklew’s claim evolves yet again. Faced with an

affidavit that unambiguously states that he will not lie fully supine, he switches his

theory and now asserts that his uvula will block his throat even if he is not lying

fully supine. Pet. 12.

V. Bucklew Fails to Present Quantifiable Evidence for Either Glossip

Element

Contrary to Bucklew’s present contention, he submitted no evidence to

suggest how long the “twilight stage” might last. Relying entirely on an article

about pentobarbital administration in horses, Dr. Zivot identified a time interval of

52-240 seconds but expressly stated that this interval referred to how long it would

take for Bucklew’s brain to stop producing detectable brain waves. Resp.Ex.1 at 85-

86. He never identified when pentobarbital would render Bucklew immobile or

when it would render him insensate to pain. He stated that the “twilight stage”

14

would occur sometime “before” Bucklew’s brain stopped producing detectable brain

waves, id. at 81, and he admitted that he had no idea how long that stage might

last, id. at 84.

Bucklew misconstrues the record when he asserts that Dr. Antognini “thinks

Bucklew will experience a sense of suffocation for 20-30 seconds.” Pet. 26. In reality,

Dr. Antognini testified that the twilight stage would not occur at all. Resp.Ex.5 at

208:5-11. He also testified that, in a lethal injection, Bucklew would cease producing

brain waves in as little as 20-30 or as long as 60 seconds. Resp.Ex.5 at 200:10-12.

Neither expert offered any quantifiable testimony about how quickly it would

take lethal gas to operate. Dr. Zivot testified that “there’s no way to tell if nitrogen

gas would not be cruel.” Resp.Ex.1 at 39. Bucklew takes unjustified liberties with

the record and asserts that Dr. Antognini testified that lethal gas would take 20-30

seconds. Pet. 5. Not so. Dr. Antognini studiously avoided providing a quantifiable

estimate because, in part, he had no knowledge of how quickly a gas mask or

chamber could be filled with gas and nobody in the United States has ever executed

a person with nitrogen. Resp.Ex. 5 at 234:20-21. Dr. Antognini gave only the vague,

unquantified response that lethal gas would occur relatively “quickly.” Resp.Ex.5 at

232:1-6.

VI. The District Court Decision

The district court granted summary judgment for Defendants. It had no

trouble rejecting Bucklew’s pleaded claim, holding that “the Record confirms that

Plaintiff’s condition will not affect the flow of chemicals.” Resp.Ex.8 at 4.

15

The district court also rejected potential arguments about Bucklew’s veins. It

found that Bucklew never presented legal arguments about his veins. Id. at 7. And

it noted that Bucklew conceded that no problems existed with his central veins,

which Defendants can use to insert the necessary IV. Id. at 4. It further determined

that arguments about Bucklew’s veins would fail—if he had raised them—because

the asserted risks were speculative, not quantified. Id. at 8.

The district court then considered Bucklew’s “twilight stage” theory even

though Bucklew never pleaded that the stage exists. It assumed, without deciding,

that a triable issue existed about the first Glossip element: whether lethal injection

would cause substantial, unnecessary suffering. Id. at 8–9. It then granted

summary judgment in Defendants’ favor because Bucklew failed to create a triable

dispute for whether nitrogen-induced hypoxia will substantially reduce suffering.

Id. at 10. It found that Bucklew presented no evidence concerning how long it would

take for lethal gas to operate. Id. at 11. It also rejected the argument, which

Bucklew presents here in his petition, that Bucklew could rely on Dr. Antognini’s

vague statement about lethal gas. The district court determined that Dr.

Antognini’s vague, unquantified statement that lethal gas would occur “quickly” did

“not support the proposition that nitrogen hypoxia would cause unconsciousness

sooner than pentobarbital.” Id. Bucklew had to establish concrete numbers

concerning lethal gas for the court to compare lethal injection to lethal gas; he failed

to do so. Id.

16

The district court also granted summary judgment for a second reason.

Bucklew’s new theory required proving that he had to be fully supine. But even

assuming he had to be supine to insert the IV, Bucklew failed to introduce evidence

that Defendants could not elevate him after IV insertion. Resp.Ex.9 at 3. The

district court did not rule on the procedural issues Defendants presented. Resp.Ex.8

at 1 n.3.

The district court rejected Bucklew’s attempt to obtain irrelevant discovery.

Despite obtaining “extensive discovery,” Resp.Ex.10 at 11, Bucklew tried to discover

details about the “development” of the execution protocol; information about

procurement, prescriptions, attempts to obtain chemicals, inventory, expiration

dates; information about maintenance, storage, and security of chemicals; and not

just the qualifications of the medical personnel who will perform the procedure, but

also their identities. Pet.App. 47a–52a. The district court denied this request

because most of it was irrelevant. Bucklew pleaded that every means of lethal

injection was unconstitutional, even if he had a world-class medical team and

regardless of Defendants’ procedures. Id. The district court allowed him to discover

information about the identity of the chemicals to be used, their expected effect, and

the general composition of the medical team and their functions. Id. But the district

court refused to permit Bucklew to go on a fishing expedition to discover the

identities and qualifications of the medical team when he asserted that lethal

injection would be unconstitutional even if the medical team was altered. Id.

17

VII. The Panel Decision

A panel of the Eighth Circuit affirmed. Resp.Ex.10. The court focused solely

on summary judgment issues and declined to address procedural issues. Id. at 3 n.2.

The panel noted that Bucklew admitted in his complaint that Defendants

“offer[ed] to adjust the gurney so that Mr. Bucklew is not lying completely prone.”

Id. at 7. Because Defendants stated the same in their answer, the panel determined

that the pleadings established that Bucklew will not be fully supine; the gurney will

be adjusted so that he is “in a proper position.” Id. at 7 n.3. Reviewing the record,

the panel also noted that Bucklew had been under general anesthesia at least eight

times in recent years and had undergone general anesthesia while lying supine. Id.

at 9.

For two independent reasons, the panel affirmed the grant of summary

judgment. First, Dr. Antognini never quantified how long it might take to employ

lethal gas. He instead stated that both lethal gas and lethal injection would occur

relatively “quickly.” Id. at 12. Because Bucklew failed to submit sufficient evidence

comparing the speed of lethal execution to the speed of lethal gas, Bucklew’s claim

failed. Id.

The panel affirmed for a second independent reason. Bucklew’s claim

depended on establishing that he was sure or very likely to be forced to lie fully

supine during lethal injection. Id. at 13. But that “argument lack[ed] factual

support” because the pleadings established that Defendants agreed not to require

Bucklew to lie supine. Id. Bucklew’s insistence that he would lie supine was

unsupported “speculation.” Id. at 14.

18

The dissent disagreed on the application of the summary judgment standard

but acknowledged that Bucklew would face substantial hurdles if the case ever

went to trial. The dissent noted that Bucklew presented his evidence through his

expert witness but that the record revealed plenty of reasons to conclude that the

witness lacked credibility: Dr. Zivot had repeatedly stated that he categorically

opposes lethal injection; his testimony about the “twilight stage” appeared to

contradict the article on which he relied; and he has repeatedly issued “inaccurate

predictions of calamities at prior executions.” Id. at 19.

The dissent believed a dispute of fact existed about how long lethal gas would

take. Even though Dr. Antognini never quantified an estimate, the dissent stated

that it could infer that Dr. Antognini believed lethal gas would take 20–30 seconds.

Id. at 20. The dissent also stated that a factfinder could determine that Bucklew

had to lie fully supine because some previous inmates had and the dissent could not

locate evidence that the State “would alter its ordinary procedures.” Id. at 19.

The Eighth Circuit denied rehearing en banc. Nine judges, including the

judge who dissented from the panel opinion, agreed that Bucklew should not receive

a stay. Only one judge would have granted a stay. Resp.Ex.17.

SUMMARY OF THE ARGUMENT

Bucklew is not entitled to a stay because he has substantially delayed

litigation. In 2008, he told the Eighth Circuit that he believed all forms of lethal

injection were unconstitutional as applied in the light of his medical condition. But

he waited six years to bring that claim and did so just twelve days before his first

19

scheduled execution. He also expressly refused to obey the district court’s orders to

submit a proper complaint solely because, as he stated in one pleading, he

“disagree[d] with the Court’s ruling.” In just this suit, he has submitted five

complaints. He has also continually shifted his theory, asserting new allegations

every time the evidence undermined his old ones. Bucklew also could have asked

this Court to review his third question presented three years ago when the Eighth

Circuit ruled that he had to plead an alternative method of execution. He instead

chose to wait until the eve of his scheduled execution to present that claim.

Bucklew also cannot establish a significant likelihood of success on the

merits, so this Court should reject his motion for a stay and petition for certiorari.

Bucklew argues that the already “extensive discovery” should have been even more

extensive and that the district court abused its considerable discretion when it

prohibited Bucklew from discovering information about the qualifications of the

medical team for inserting IVs. But that information was irrelevant because

Bucklew expressly pleaded that qualifications of the medical team had no bearing

on whether lethal injection would be unconstitutional. Bucklew’s argument also

fails because he centers his discovery argument on the contention that he will suffer

when the medical team attempts to secure an IV. But as the district court held, he

never preserved that claim. The claim also lacks any merit because he conceded he

has no problems with his veins other than his arm veins, and his own expert

testified that the medical team could access his central veins at an overwhelmingly

high success rate. His expert also neglected to examine the veins in Bucklew’s legs.

20

Bucklew’s nondiscovery claim rests on a series of assertions—all of which he

must prove. Bucklew’s medical condition has caused his uvula to swell. He asserts

that when he lies fully supine, gravity causes his uvula to block his airway, which

ordinarily is not a problem because he suggests he can swallow to move it. But he

asserts that at some point during pentobarbital administration, there will occur

what he calls a “twilight stage”: a period when pentobarbital will immobilize him—

preventing him from swallowing—but where he can still feel pain. He argues that

he will experience a choking sensation during this period—if he is forced to lie fully

supine—and that this period will last so long that he experiences substantial,

unnecessary pain. He asserts that he should instead be executed by nitrogen-

induced hypoxia, which he contends will be substantially less painful. Bucklew’s

claim fails if he cannot prove every assertion.

Bucklew cannot prevail on the merits for numerous reasons. First, he cannot

establish that Defendants will force him to lie fully supine. As the panel opinion

correctly determined, all parties agree that Defendants are able and willing to

adjust the gurney so that Bucklew is not lying fully supine. To the extent the

dissenting opinion determined that some ambiguity existed in the record on this

issue, Defendants cured that ambiguity by submitting an affidavit affirming that

Bucklew will not be forced to lie fully supine. Resp.Ex.13.

Second, Bucklew never presented any evidence to suggest how long the

“twilight stage” lasts. Dr. Zivot testified that it might take 52–240 seconds for

Bucklew’s brain to cease producing detectable brain waves—what some physicians

21

call “brain death.” But he specifically testified that this interval did not concern how

long the “twilight stage” would last. He said the twilight stage would occur “before”

brain waves ceased and that he had no way of knowing how long the twilight stage

might last. But without evidence of the duration of that stage, no court could

determine whether Bucklew would experience substantial, unnecessary pain, or

whether he would merely have to hold his breath for a second or two, if at all.

Third, Bucklew presented no quantifiable evidence about the time it would

take for lethal nitrogen to operate. Bucklew cannot rely on the statement by Dr.

Antognini that lethal injection would take as little as 20-30 seconds or as long as 60

seconds as quantitative evidence for how long that expert believes lethal gas would

take. Defendants’ expert said he had no way of knowing how quickly gas would be

introduced into a chamber or mask, so he studiously avoided providing quantifiable

evidence estimates lethal nitrogen. He offered only the vague, unquantified

statement that execution by lethal gas would occur “quickly.” Without quantifiable

evidence, no court can determine whether lethal gas “significantly reduce[s] a

substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737. In the light of Bucklew’s

failure to present evidence on critical issues and his failure to preserve arguments,

summary judgment was warranted on numerous independent grounds.

Even if this Court remanded for the district court to conduct a bench trial,

Bucklew would still be unlikely to prevail. Not only does he lack evidence for crucial

issues, but the evidence he presented is weak. Bucklew’s arguments rely on

evidence submitted by Dr. Zivot. But as even the dissenting opinion in the Eighth

22

Circuit suggested, Dr. Zivot lacks credibility. He has admitted that he is

categorically opposed to lethal injection because that procedure has harmed his

career, he is willing to testify that Bucklew faces an unconstitutional procedure

regardless of his medical condition, his recent calamitous predictions of suffering in

other executions have all proven inaccurate, and his testimony is clearly erroneous.

If this case were to proceed to a bench trial, the court would likely rule against

Bucklew. This case, moreover, contains numerous procedural issues that no court

has yet addressed but that the Eighth Circuit, en banc, has suggested likely defeat

Bucklew’s suit.

Granting certiorari is also unwarranted because Bucklew has not raised an

important question of federal law. His first question presented is unpreserved. His

second merely asserts misapplication of the well-known summary judgment

standard. And he had the opportunity three years ago to raise his third question

when the Eighth Circuit ruled that he had to plead an alternative method of

execution. He instead chose to delay until the eve of his execution.

REASONS FOR DENYING THE MOTION AND PETITION

I. Bucklew Could Have Brought This Claim Sooner.

This Court should deny a stay because Bucklew unduly delayed litigation.

There exists “a strong equitable presumption against the grant of a stay where a

claim could have been brought at such a time as to allow consideration of the merits

without requiring entry of a stay.” Hill, 547 U.S. at 584. Bucklew told the Eighth

Circuit in 2008 that lethal injection was unconstitutional as applied to him. But he

waited six years before bringing this suit and did so just twelve days before his

23

initially scheduled execution. And despite having the opportunity to add this claim

to his facial challenge, he brought this suit separately without seeking the district

court’s permission. Even if this Court thinks this case is not time-barred, Bucklew’s

delay still weighs against granting a stay. Bucklew, moreover, repeatedly declined

to plead an alternative method of execution. This suit concerns his fifth complaint.

Time after time, he filed defective pleadings solely because he “disagree[d] with the

Court’s ruling,” Zink, Doc.443, at 1, and he filed a sufficient complaint only after the

district court warned him that it would dismiss with prejudice. Resp.Ex.10 at 7.

Bucklew has also continually switched his legal theory. For years, he

asserted that his condition would interfere with circulation, prolonging an

execution. He switched from that theory when the evidence undermined it. His

theory that a “twilight stage” exists appears nowhere in his complaint. He has also

abandoned—just now—his assertion that his claim rests on his being forced to lie

fully supine.

Bucklew also delayed raising his third question presented. Bucklew asks this

Court to consider whether a plaintiff must plead an alternative method of execution

in as-applied challenges to execution protocols. But he had an opportunity to raise

that issue three years ago and chose not to. The Eighth Circuit expressly held that

Bucklew had to plead an alternative method of execution even though his claim is

as applied. Bucklew, 783 F.3d at 1128. This Court granted him a two-and-a-half-

month extension to file a petition for certiorari. Resp.Ex.15. But Bucklew chose

instead to wait three years and ask this Court to review that question on the eve of

24

his execution. Bucklew’s decision to refrain from filing a petition for certiorari until

now reveals that the petition is nothing more than “a tactic for delay.” Nelson, 541

U.S. at 648.

II. Bucklew Has Not Established Likelihood of Success on the Merits.

To succeed on the merits, Bucklew will have to prove first that his so-called

“twilight stage” exists and will last so long that he is “sure or very likely” to

experience substantial, unnecessary suffering. Glossip, 135 S. Ct. at 2737. He then

must prove that nitrogen-induced hypoxia “in fact significantly reduce[s] a

substantial risk of severe pain.” Id. (alteration in original). Bucklew has no

likelihood of establishing either element or of establishing likelihood of success on

his separate discovery claim.

A. Bucklew’s discovery argument is unpreserved and meritless.

Despite the district court’s allowing “extensive discovery,” Resp.Ex.10 at 11,

Bucklew centers his petition on the assertion that he did not receive enough. He

seeks additional discovery concerning the qualifications of the medical team,

asserting that he needed to probe the qualifications of the medical team to insert an

IV. Even the dissenting judge would not have granted this request, and his claim

fails for numerous reasons.

First, that argument is not preserved. The district court held that Bucklew

failed to raise any legal arguments concerning his veins. Resp.Ex.8 at 7. Second, his

claim that the medical team will have problems inserting an IV is speculative.

Bucklew’s expert admitted that he neglected to examine the veins in Bucklew’s legs,

so Bucklew has submitted no evidence to suggest that those veins are inadequate.

25

Resp.Ex.1 at 70. Indeed, as the district court found, other than with the veins in his

arms, Bucklew “concedes that there is no evidence in the Record establishing that

Plaintiff has any problem with his veins.” Resp.Ex.8 at 4. At least eight times in

recent years, Bucklew has undergone intravenous anesthesia without incident.

Resp.Ex.10 at 9. The panel opinion correctly determined that his arguments are

speculative. Id. at 14–15.

Bucklew’s concession also demonstrably refutes his repeated assertion that

he will have to experience a “cut-down” procedure. It is undisputed that Bucklew

has no problems with his central veins, and Bucklew’s own expert testified that it

was statistically impossible—given the perfect state of Bucklew’s central veins—

that the medical team would repeatedly fail to gain access using normal means. He

testified that even inexperienced anesthesiologists can access a central vein using

normal means 90 percent of the time on any single attempt, which renders the

probability that the medical team will fail twice a meager 1 percent. Resp.Ex.1 at

73–74. Bucklew cannot establish that the medical team is “sure or very likely” to

have problems with his veins. Any problem would, by definition, be an “isolated

mishap” that “while regrettable, does not suggest cruelty.” Baze, 553 U.S. at 50.

Bucklew’s attempt to gain additional discovery fails for yet another critical

reason: he pleaded that the qualifications of the medical team had no bearing on

whether lethal injection would be unconstitutional. Bucklew never pleaded that any

member of the medical team lacked proper qualifications. He instead pleaded that

lethal injection was unconstitutional regardless of who was on the medical team.

26

The district court properly concluded that Bucklew could not go on a fishing

expedition without pleading that the qualifications of the medical team were

pertinent to his claim. Pet.App.51a. At the very least, that information is not

“proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). It was well within

the district court’s considerable discretion to deny access to unnecessary

information especially when it had already granted Bucklew “extensive discovery,”

Resp.Ex.10 at 11, including information about the medical team and the effects of

pentobarbital on the human body. Pet.App.48a–52a.

B. Bucklew will not lie fully supine, so a critical factual predicate of

his claim fails.

As both the panel and the dissent recognized, critical to Bucklew’s “twilight

stage” theory is the assertion that he will be forced to lie fully supine during a lethal

injection. Resp.Ex.10 at 13, 19.

The panel correctly determined that Defendants submitted evidence that

they are able and willing to adjust the gurney. As the panel held, it is undisputed

based on the pleadings that Defendants have “offer[ed] to adjust the gurney so that

Mr. Bucklew is not lying completely prone.” Id. at 7 & n.3. The dissent disagreed

but acknowledged that Defendants are entitled to judgment if evidence exists that

the State will not force Bucklew to lie fully supine. Id. at 19.

As the panel correctly held, the record contains sufficient evidence to

establish that Bucklew will not lie fully supine, but to the extent some jurists could

determine that the record includes ambiguity, Defendants submitted an additional

affidavit to the Eighth Circuit in response to Bucklew’s stay motion. That affidavit

27

affirms that Bucklew will not be forced to lie fully supine. Resp.Ex.13. And Bucklew

never submitted contrary evidence that Defendants would be unable to ensure that

he will not lie fully supine. Bucklew’s claim—which depends on the assertion that

he will lie fully supine—fails.

Bucklew’s evolving theories evolve again. Confronted with this affidavit,

Bucklew now asserts that lying supine is immaterial to his claim. Pet. 12. This new

assertion is a volte-face from what he argued before the Eighth Circuit. Before that

Court, he centered his claim on the assertion that he would have to lie fully supine.

In his opening brief, he declared, “When Bucklew is in a fully supine position, his

uvula is pulled, by force of gravity, back into his airway thereby effectively blocking

airflow.” Resp.Ex.18 at 5 (emphasis added). He stated that he must manage his

airway “while in the supine position.” Id. at 5. His “be[ing] forced to lie supine,” he

asserted, is what “result[s] in choking, gagging, hemorrhaging, and ultimately

suffocation.” Id. at 45. He pressed that he was entitled to additional discovery

because, allegedly, it would “definitively establish that he will have to be supine.”

Id. at 27. He also stated that he uses pillows to sleep at an “incline” to avoid being

fully supine, Resp.Ex.18 at 37, but now contradicts his statement by asserting that

he sleeps “upright,” Pet. 9. As the Eighth Circuit recognized, Bucklew’s theory was

centered on the assertion that he would have to lie fully supine. Resp.Ex.10 at 13.

This Court should not grant a stay of execution or a writ of certiorari on Bucklew’s

brand-new theory.

28

C. Bucklew failed to present evidence concerning how long the

“twilight stage” might last.

Bucklew attempted to establish the first Glossip element by asserting that a

period of time exists when pentobarbital will have immobilized him but will not yet

have rendered him insensate to pain. He contends that he will experience choking

during that period if he is lying fully supine because he will be unable to consciously

swallow. Undoubtedly, he created a triable issue for whether this “twilight stage”

exists.

But he failed to present any evidence about how long this stage might last.

Bucklew argues that when Dr. Zivot identified a time interval of 52-240 seconds, he

was referring to the duration of the twilight stage. Pet. 13. But the record refutes

that contention. Dr. Zivot referred solely to the duration until Bucklew stopped

producing detectable brain waves—what some physicians call “brain death.” In his

deposition, Dr. Zivot stated that he derived the interval from a single study.

Resp.Ex.1 at 85. He further stated that the study “recorded a range of as short as

fifty-two seconds and as long as about two hundred and forty seconds before they

see isoelectric EEG.” Id. at 86 (emphasis added). An EEG test measures brain waves

on a scale of 0 to 100, with 100 referring to patients who are fully awake. Jay w.

Johansen, et al., Development and Clinical Application of Electroencephalographic

Bispectrum Monitoring, 93 Anesthesiology 1336, 1336 (2000). Resp.Ex.16. A score of

0—an “isoelectric EEG”—refers to a patient who emits no detectable brain activity.

Id. Dr. Zivot expressly stated that it would take 52-240 seconds for Bucklew to

29

experience an “isoelectric EEG” or “complete cessation” of detectable brain waves.

Resp.Ex.1 at 86.

But Dr. Zivot never testified that the twilight stage, if it occurs, would last

the same length of time. Just the opposite. It is well-established that a person

becomes insensate to pain when they emit an EEG score of between 40 and 65—far

before the isoelectric point. Resp.Ex.16 fig.1. Consistent with this medical

understanding, Dr. Zivot testified that the twilight stage, if it occurred, would occur

“before” the isoelectric point. Dr. Zivot admitted he could not pinpoint when the

“decreased brain activity” of the isoelectric point would occur, only that it would

occur “at some point” during the 52-240 second interval. Resp.Ex.1 at 81. He then

explained that the twilight stage would occur “before then.” Id. When asked to

pinpoint when it might occur, Dr. Zivot admitted he could not and responded that

“there’s a wide range of time that could be.” Id. at 84. Dr. Zivot never identified

when pentobarbital might immobilize Bucklew, nor when pentobarbital would

render him insensate to pain.

The record therefore lacks any evidence for how long the twilight stage would

last if it occurred. Yet Bucklew’s claim rests on establishing that the stage is so long

that it will cause him to experience substantial, unnecessary suffering. Without this

evidence, Bucklew cannot establish that lethal injection is “sure or very likely to

cause serious illness and needless suffering,” creating a “substantial risk of serious

harm.” Glossip, 135 S. Ct. at 2737. If the twilight stage lasts just two or three

30

seconds, for example, then it is no more intolerable than the universal experience of

holding one’s breath for several seconds.

Even if Dr. Zivot was referring to the length of the twilight stage, not—as he

plainly was—to the entirely different isoelectric point, Bucklew still could not

establish a genuine dispute of material fact on the length of the twilight stage.

Clearly erroneous evidence does not create a triable issue. “When opposing parties

tell two different stories, one of which is blatantly contradicted by the record, so

that no reasonable jury could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550

U.S. 372, 380 (2007).

Dr. Zivot’s testimony “blatantly contradicted” the article on which he rested

his testimony. Dr. Zivot rested his testimony solely on a study about horse

euthanasia. Resp.Ex. 1 at 85. That study never mentions anything remotely similar

to a “twilight stage.” It concerns only the time until the isoelectric point—when the

horses ceased producing detectable brain waves. Dr. Zivot testified that the study

reported that it takes between 52 and 240 seconds for pentobarbital to cause an

isoelectric EEG. Id. at 86. But the study reports that every subject experienced an

isoelectric EEG “within 52 seconds.” Resp.Ex.4 at 5 (emphasis added). In fact, only

one horse lasted that long. The median time was 18 seconds; the quickest, 2

seconds. Id. The latter number, 240 seconds, refers not to pentobarbital but—oddly

enough—to lethal gas. The article references a finding from a different study that

gas-induced hypoxia did not cause an isoelectric EEG for 240 seconds. Id. at 8.

31

Because the sole article on which Dr. Zivot relied blatantly contradicts his

assertion that it might take pentobarbital up to 240 seconds to render a person

what some call “brain dead,” the most one can construe from his testimony is that it

might take up to 52 seconds to reach the isoelectric point. See Scott, 550 U.S. at 380.

D. The Eighth Circuit correctly determined that the record lacks

quantifiable evidence to compare nitrogen-induced hypoxia to

lethal injection.

To meet the second Glossip element, Bucklew must establish an alternative

method of execution that is “feasible, readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain.” Glossip, 135 S. Ct. at 2737 (citation

omitted). Both the district court and the panel held that Bucklew failed to establish

this element because he never presented evidence for how long execution by

nitrogen-induced hypoxia would take. For example, Dr. Zivot testified that “there’s

no way to tell if nitrogen gas would not be cruel.” Resp.Ex.1 at 39.

The panel opinion correctly held that Bucklew needed to present comparative

evidence. Resp.Ex.10 at 12. Bucklew rests his argument on the assertion that

pentobarbital might take 52-240 seconds for him to cease producing detectable

brain waves. That interval is irrelevant to Bucklew’s claim for the reasons stated

above. But even if it were relevant, without quantifiable evidence about how long

nitrogen-induced hypoxia might take, no court could compare the methods. Id.

Bucklew takes unjustified liberties with the record when he incorrectly

asserts that it is “undisputed that lethal gas would cause him to experience a sense

of suffocation for, at most, 20-30 seconds.” Pet. 18. To the contrary, no quantifiable

evidence about the duration of execution by lethal gas exists in the record.

32

Bucklew asks this Court to put words into Dr. Antognini’s mouth that he

never said. Dr. Antognini testified that nitrogen-induced hypoxia could take as little

as 20-30 seconds or as long as 60 seconds. Resp.Ex.5 at 200:10-12. He also stated

that lethal injection and lethal gas would both render a person unconscious

“quickly.” Resp.Ex.5 at 232:1-6. Bucklew argues that this Court should extrapolate

from that exchange that Dr. Antognini believes nitrogen-induced hypoxia would

render a person unconscious within 20-30 seconds and that this Court should

compare that alleged evidence to Dr. Zivot’s testimony that lethal injection would

take 52-240 seconds. But that argument fails for numerous reasons.

First, Dr. Antognini never quantified the duration of execution by lethal gas.

He stated only that both lethal injection and lethal gas would occur “quickly.” Dr.

Antognini did not say that lethal gas would occur faster than lethal injection. He

left his assertion vague and undefined. This Court cannot extrapolate quantifiable

evidence where none exists. Indeed, Dr. Antognini was extremely careful to avoid

quantifying a duration for lethal gas. He cautioned that his testimony about lethal

gas was not “as well founded as some of [his] other conclusions.” Resp.Ex.5 at 236:3-

4. In particular, he stated that he could not quantify the duration of nitrogen-

induced hypoxia because he had no way of knowing “how quickly the gas is

introduced.” Id. at 234:20-21. In fact, he based his opinion in part on how cyanide

gas is used because nitrogen-induced hypoxia has never been used for an execution

in the United States. Id. at 233:5. It would be error to infer from Dr. Antognini’s

33

statement quantified evidence about nitrogen-induced hypoxia when Dr. Antognini

studiously avoided presenting quantified evidence.

Second, even if this Court adopted Bucklew’s argument that Dr. Zivot

thought execution by lethal gas would take the same amount of time as execution by

lethal injection, Bucklew’s argument would still fail. If Dr. Antognini is correct that

it would take up to 52 seconds for lethal injection to cause an isoelectric EEG—what

some refer to as “brain death”—and Dr. Antognini is correct that execution by lethal

gas would take the same amount of time as execution by lethal injection, then

Bucklew’s own argument would reveal only that lethal gas and lethal injection take

the same amount of time.

Third, Bucklew presents a skewed version of the record when he asserts that

Dr. Antognini suggested that lethal injection would always take 20-30 seconds to

render a person unconscious. Dr. Antognini instead testified that lethal injection

could take as little as 20-30 seconds but as long as 60 seconds. Resp.Ex.5 at 200:10-

12. Dr. Zivot’s statement that execution by lethal injection could take as long as 240

seconds is clearly erroneous for the reasons stated above. Dr. Zivot’s testimony is

thus limited to the assertion that lethal injection would cause Bucklew to cease

producing detectable brain waves “within 52 seconds.” Resp.Ex.4 at 5. So even if

Bucklew is correct that this Court can create quantifiable evidence about the

duration of lethal gas when Dr. Antognini never submitted any such evidence,

Bucklew’s argument still fails. Under Bucklew’s argument, Dr. Antognini testified

that execution by lethal gas could take longer than Dr. Zivot’s estimate for lethal

34

injection. The evidence in the record is insufficient to determine whether Bucklew

would be “sure or very likely” to experience a substantially less painful execution by

lethal gas. See Glossip, 135 S. Ct. at 2737.

E. Bucklew’s claim rests on evidence provided by an expert witness

who lacks credibility.

If this Court remands for a trial, Defendants will more than likely prevail.

The only evidence Bucklew presented for his critical “twilight stage” theory came

through his expert witness. But as even the Eighth Circuit panel dissent suggested,

Dr. Zivot lacks credibility. Resp.Ex.10 at 19.

In particular, success on the first Glossip element requires Bucklew to prove

that the “twilight stage” will last between 52 and 240 seconds. For the reasons

stated in Part II.C, Dr. Zivot’s testimony refers only to the duration until detectable

brain waves cease, not how long the “twilight stage” might last. In any event, his

testimony lacks credibility because he misrepresents the article on which he relies.

Dr. Zivot also lacks credibility because he admitted that his testimony was

not based on Bucklew’s medical condition. He instead asserted that he believes

“lethal injection by design will be cruel in every circumstance.” E.g., Resp.Ex.1 at

105; accord id. at 17-18 (stating that “[l]ethal injection was never anything other

than a façade for punishment”).

Dr. Zivot’s categorical assumption that lethal injection would be cruel even

absent Bucklew’s medical condition conforms to erroneous affidavits he filed in

other cases. At least three times, he has opined that an inmate would suffer

excruciating pain by lethal injection. Id. at 99–101. But he admits that no evidence

35

exists that any of them, all of whom have been executed, experienced such pain. Id.

In one instance, he testified that an inmate “will suffer an excruciating death”

because the inmate was overweight. Id. at 42. But Dr. Zivot admits that no evidence

suggests the inmate experienced distress. Id. at 99–101. Indeed, that inmate sang

“Amazing Grace” before quickly becoming unconscious. Id. at 46–47.

Dr. Zivot also lacks credibility because he has dramatically changed his

position on how quickly pentobarbital renders a person unconscious. He testified

here that pentobarbital will cause a person to stop producing detectable brain

waves no sooner than 52 seconds and that it might take as long as 240 seconds. But

in an article he wrote four years ago, he stated that the first time he witnessed use

of chemicals like pentobarbital “was nothing short of astounding” because the

chemical, “in a moment, rendered the patient unconscious.” Id. at 256 (emphasis

added). In that article, Dr. Zivot also admitted that he categorically opposes lethal

injection because the use of lethal injection had interfered with his career. He

declared frustration that he trained for “thousands of hours” to obtain certification

to use certain chemicals, only for pharmaceutical companies to discontinue

manufacturing those chemicals in response to anti-death penalty activists. Id.

In short, Dr. Zivot has admitted that he categorically opposes lethal injection

because it has interfered with his career, his testimony has been proven inaccurate

each time he testified that a person would experience substantial pain from

execution, and his testimony about the time interval relies solely on a clearly

36

erroneous reading of an article. Dr. Zivot’s lack of credibility weighs substantially

against Bucklew’s likelihood of success on the merits.

F. Bucklew Is Likely to Lose on Procedural Grounds.

Even if Bucklew could prevail on the merits, he is substantially likely to lose

on the procedural issues. In 2008, Bucklew retained an expert to review his medical

records. That expert opined that all lethal injection would be unconstitutional

because of Bucklew’s condition. Resp.Ex.11 at 2, 29. Bucklew chose not to file suit.

Six years later, he retained another medical expert, who opined the same thing.

Resp.Ex.12 ¶¶ 15, 77–83. That time, just twelve days before execution, he filed suit.

No court has yet ruled on the procedural issues, but the Eighth Circuit, en banc,

stated that there exists a substantial likelihood that Bucklew’s suit is time-barred

by the five-year statute of limitations. Bucklew, 783 F.3d at 1129.

Similarly, Bucklew’s suit is likely barred by res judicata. “[A] final judgment

on the merits of an action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.” Allen v. McCurry, 449

U.S. 94, 94 (1980). Bucklew argued before the panel that his cause of action arose in

April 2014. Resp.Ex.14 at 4. Even assuming his contention is true, his lawsuit in

Zink was ongoing at that time. He could have raised this claim in Zink. In fact, he

filed this suit on the day he was required to file an amended pleading in Zink. But

he never asked the district court for permission to split his claims even though he

had the same counsel in both actions. His claim is precluded.

37

III. Reviewing any of the questions presented would be unwarranted.

This Court has already held that “identify[ing] a known and available

alternative method of execution that entails a lesser risk of pain [is] a requirement

of all Eighth Amendment method-of-execution claims.” Glossip, 135 S. Ct. at 2731

(emphasis added).

Bucklew asks this Court to carve out an exception to the holding in Glossip

that he plead an alternative method of execution because he raises an as-applied

challenge. But Bucklew had an opportunity to raise this issue before this Court

three years ago. The Eighth Circuit expressly held that Bucklew had to plead an

alternative method of execution even though his claim is as applied. Bucklew, 783

F.3d at 1128. But Bucklew chose not to file a petition for certiorari even though this

Court granted him a two-and-a-half-month extension. Resp.Ex.15. Bucklew’s

decision to save that petition for certiorari until now reveals that the petition is “a

tactic for delay.” Nelson, 541 U.S. at 648.

Bucklew has also failed to establish any compelling reason why this Court

should adopt his carveout. Bucklew admits that any suffering he experiences will be

accidental. Pet. 3. That admission defeats his claim because a challenge under the

Eighth Amendment requires a mens rea. Bucklew can prevail only if no prison

official could claim they were “subjectively blameless.” Glossip, 135 S. Ct. at 2737.

Any harm he might suffer, “while regrettable, does not suggest cruelty.” Baze, 553

U.S. at 50.

Reviewing the other questions presented is similarly unavailing. Bucklew’s

discovery argument is not preserved and is also meritless. Bucklew second question

38

presented asserts that the Eighth Circuit misapplied standards for summary

judgment. But “[t]he standard for granting summary judgment is well-known” and

needs no correction. E.g., McMunn v. Babcock & Wilcox Power Generation Grp., Inc.,

869 F.3d 246, 260 (3d Cir. 2017), Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d

Cir. 2000); S.E.C. v. Murphy, 626 F.2d 633, 640 (9th Cir. 1980). Bucklew has not

identified any circuit split. He has merely asserted that the Eighth Circuit split

from other circuits by misapplying the well-known standard for summary judgment.

This case presents no novel or important legal question about summary judgment.

Not only did the Eighth Circuit correctly apply the summary judgment

standard, but even if this Court disagreed, this Court need not exercise its

extraordinary power of review to correct what Bucklew purports is a single

misapplication of a standard that is correctly employed thousands of times each

year. Bucklew admits that he wants this Court to “reaffirm” the well-known

summary judgment standard. Pet. 20. But granting certiorari is unwarranted when

the petition merely asserts a “misapplication of a properly stated rule of law.” Sup.

Ct. R. 10. The Court also could not consider Bucklew’s second question presented

without also considering every other factual predicate Bucklew must establish

because without establishing those predicates, he cannot prevail.

Granting certiorari or a stay is further unwarranted where, as here, “the

State and the victims of crime have an important interest in the timely enforcement

of a sentence”—enforcement that has already been delayed by 22 years and a stay

by this Court four years ago. Hill, 547 U.S. at 584. And it is especially unwarranted

39

because, as established above, Bucklew is extremely unlikely to prevail on the

merits—as even the panel dissent below suggested.

CONCLUSION

Bucklew cannot establish a significant probability of success on the merits,

his litigation strategy caused substantial delays, and “the State and the victims of

crime have an important interest in the timely enforcement of a sentence.” Hill, 547

U.S. at 584. Further delay is unwarranted. This Court should deny the motion for

stay of execution and deny the petition for a writ of certiorari.

Respectfully submitted,

JOSHUA D. HAWLEY

Attorney General

D. John Sauer

First Assistant and Solicitor

Joshua M. Divine

Deputy Solicitor General

Michael Spillane

Assistant Attorney General

Counsel of Record

Office of the Attorney General

207 W. High Street

P.O. Box 899

Jefferson City, MO 65102

Mike.Spillane@ago.mo.gov

(573) 751-8870

Counsel for Respondents

March 16, 2018